Tuesday, December 7, 2010

UPDATE, Dec. 8: The judge yesterday ordered the state to give him all the records on the case by 10 a.m. today, along with a document list to give the newspapers. He said he would decide what records to make public. For a detailed story by the Herald-Leader's Beth Musgrave, click here.

A toddler who died last year at a methamphetamine lab near Monticello drank drain cleaner, which is used in making meth, according to records released by order of Franklin Circuit Judge Phillip Shepherd, the Lexington Herald-Leader reported Tuesday.

Attorneys for the Herald-Leader and the Courier-Journal are asking Judge Shepherd to hold the state Cabinet for Health and Family Services in contempt and to force it to release additional records related to the child's death still being held under seal.

The Herald-Leader had filed suit under the state's Open Records Act after the cabinet refused to release details in the death of 20-month-old Kayden Branham, right. The boy's father, Bryan Daniels, was charged with murder, and along with several others, with making meth. That trial is scheduled for January. Both the toddler and his mother, Alisha Branham, were under the supervision of the state system for abused and neglected children at the time of his death.

Both newspapers reported the records it received under Judge Shepherd's court order were incomplete, and some information contained in documents that were released had been redacted by the cabinet.

"The Herald-Leader strongly believes that the state should produce all records in this case, including any that reflect the cabinet's contact with the family and its conduct prior to Kayden's death," Editor Peter Baniak said in the newspaper's story. "Without such transparency, there is no way for the public to assess whether the state child-welfare system appropriately handled this case. That's why we took this case to court in the first place."

“They have not given us nearly all the records the judge ordered them to give us,” said Jon Fleischaker, a lawyer for The Courier-Journal. “I think there are major problems with their attempt to comply with the court order.”

In ordering the records released, Shepherd wrote, "It is not unwarranted for the public, and the press, to want to know what happened when a 20-month-old child in the care and legal custody of the Commonwealth of Kentucky winds up dead after drinking toxic substances in a meth lab."

For the full story in the Herald-Leader, go here. The Courier-Journal's story is here.

Wednesday, December 1, 2010

Northern Kentucky's Sanitation District #1 "repeatedly and willfully" violated the state's open records act in a dispute with an Independence construction company over sewage overflows, a Kenton County Circuit Court judge has ruled.

But Judge Martin Sheehan also slammed the Coppage Construction Company's lawyers for piling up an "obscene" amount of billable hours in the case, awarding $25,000 in lawyers' fees and $13,133.78 in costs, instead of the $185,000 they had claimed.

In a colorful ruling against the sanitation district, Sheehan railed against the district's conduct, which he said "falls woefully short of the standards demanded by the Open Records Act," then slammed the construction company's lawyers as "a gaggle of gluttons at an all-you-can-eat buffet."

"More than an estimated $300,000 has been expended in what amounts to little more than a discovery dispute," he wrote. "That's obscene! One could wonder if the best interests of the clients have been lost in the fog of a battle of wills, ego and legal one-upmanship."

The dispute involves a long-running civil lawsuit between the two entities, in which Coppage filed requests for thousands of emails from the sanitation district, which provides sewage service for most of Northern Kentucky. The district delayed complying with the request for some two years, using what the judge called a "shotgun approach, asserting any and all explanations for its conduct which it could conjure up."

"Upon analysis of the totality of the circumstances, including but not limited to inadequate searches, inordinate delays, implausible explanations, insufficient and incomplete production of records, and possible illegal record destruction, there is but one conclusion that can be reached," Sheehan wrote in his opinion. "(The district) repeatedly and willfully violated the Open Records Act."

On considering the question of legal costs, which the act says may be awarded in cases of willful violation, though, Sheehan said the request by Coppage for $185,000 "fails the reasonableness test."

"Quite simply the request shocks the conscience and is excessive and overreaching in many respects," the judge wrote.

In his ruling, Sheehan laments that "as a result of the conduct of many attorneys practicing before this court during its 17 years on the bench, this Court finds itself, with increasing frequency, bemusing and bemoaning the declining civility of our chosen profession. Scorched-earth litigation tactics now reign supreme ... the corrosive effect of such poison is painfully evident in the current dispute. Over $300,000 expended bickering over discovery - incredible! Ludicrous! Obscene!"